# S v Jordan

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***S v Jordan and Others*** is a decision of the [Constitutional Court of South Africa](/source/Constitutional_Court_of_South_Africa) which confirmed the constitutionality of statutory prohibitions on [brothel-keeping](/source/Brothel-keeping) and [prostitution](/source/Prostitution). It was handed down on 9 October 2002 with a majority judgment by Justice [Sandile Ngcobo](/source/Sandile_Ngcobo).

Hearing a challenge to provisions of the [Sexual Offences Act, 1957](/source/Sexual_Offences_Act,_1957), the court held unanimously that it is constitutional to criminalise brothel-keeping. However, the bench split six-to-five on the constitutionality of section 20(1)(aA) of the Act, which criminalises prostitution. Writing on behalf of the minority, Justices [Kate O'Regan](/source/Kate_O'Regan) and [Albie Sachs](/source/Albie_Sachs) argued that the prostitution prohibition [discriminated](/source/Discriminated) indirectly but unfairly against women, while the majority dismissed this view on the grounds that both men and women are barred from conducting sex work.

## Background

The applicants, three women, were arrested in 1996 at their workplace, a [brothel](/source/Brothel) in [Pretoria](/source/Pretoria). Charged in the [Magistrate's Court](/source/Magistrate's_court_(South_Africa)), they were convicted of contraventions of the [Sexual Offences Act, 1957](/source/Sexual_Offences_Act,_1957) – the brothel's owner and receptionist were convicted of [keeping a brothel](/source/Brothel-keeping), an offence under section 2, and a sex worker was convicted of [conducting indecent sexual acts for reward](/source/Prostitution), an offence under section 20(1)(aA). In particular, the sex worker had been paid [R](/source/South_African_rand)250 to administer a pelvic massage to an undercover policeman.[1]

Though the women did not dispute their involvement in sex work, they appealed their convictions to the [High Court of South Africa](/source/High_Court_of_South_Africa), contending that the relevant provisions of the Sexual Offences Act are unconstitutional. In August 2001, the High Court's [Transvaal Provincial Division](/source/Transvaal_Provincial_Division) found in the appellants' favour on the prostitution provision, finding that it is unconstitutional to criminalise prostitution. However, the challenge to the brothel-keeping provisions was dismissed.

The matter went to the [Constitutional Court of South Africa](/source/Constitutional_Court_of_South_Africa), which was charged with confirming the invalidity of the prostitution provision; in addition, the first and second women appealed the unfavourable finding on the brothel-keeping provisions. The state opposed both applications, represented by [Wim Trengove SC](/source/Wim_Trengove); the appellants were represented by [David Unterhalter SC](/source/David_Unterhalter), and their applications were supported by several amici curiae. Argument was heard from 5 to 6 March 2002, and judgment was handed down on 9 October 2002.

## Judgment

### Brothel-keeping

Unlike the High Court, the Constitutional Court decided the constitutionality question with reference to the [Interim Constitution](/source/Interim_Constitution_(South_Africa)), which had prevailed at the time of the offence, rather than with reference to the [1996 Constitution](/source/Constitution_of_South_Africa). On this basis, the court agreed unanimously to uphold the High Court's finding that the prohibition on brothel-keeping is constitutionally compliant, thereby dismissing the appeals of the first and second appellants.

### Prostitution

However, the bench divided six-to-five on the constitutionality of the prohibition on prostitution. The minority judgment was co-written by Justices [Kate O'Regan](/source/Kate_O'Regan) and [Albie Sachs](/source/Albie_Sachs), with the concurrence of Deputy Chief Justice [Pius Langa](/source/Pius_Langa) and Justices [Laurie Ackermann](/source/Laurie_Ackermann) and [Richard Goldstone](/source/Richard_Goldstone). Although the minority dismissed the appellants' arguments from the rights to human dignity, freedom of person, privacy, and economic activity, respectively, the minority was persuaded by the argument that the prostitution provision indirectly brought about unfair [discrimination](/source/Discrimination), in violation of the [right to equality](/source/Right_to_equality) in [Section Nine of the Constitution](/source/Section_Nine_of_the_Constitution_of_South_Africa). O'Regan and Sachs held that insofar as the law makes the prostitute (typically a woman) the primary offender and her patron (typically man) nothing more than an [accomplice](/source/Accomplice), it reinforces sexist double standards and perpetuates [gender stereotypes](/source/Gender_stereotypes) in a manner inconsistent with the constitutional commitment to [gender equality](/source/Gender_equality). On these grounds, the minority would have confirmed the High Court's order that section 20(1)(aA) of the Sexual Offences Act is unconstitutional and invalid.

However, writing for the six-person majority, Justice [Sandile Ngcobo](/source/Sandile_Ngcobo) argued that the criminalisation of prostitution is not discriminatory because the law criminalises prostitution by men as well as by women. Moreover, the majority agreed with the minority (though for slightly different reasons) that the appellants' other constitutional arguments failed. It therefore held that the prohibition is constitutional; the court therefore declined to confirm the High Court's order and instead set it aside, dismissing the women's applications and reinstating their criminal sentences. Ngcobo's opinion was joined by Chief Justice [Arthur Chaskalson](/source/Arthur_Chaskalson), Justices [Johann Kriegler](/source/Johann_Kriegler) and [Tholie Madala](/source/Tholie_Madala), and Acting Justices [Ben du Plessis](/source/Ben_du_Plessis) and [Thembile Skweyiya](/source/Thembile_Skweyiya).

## Reception

The majority judgment was unpopular among many [feminist](/source/Feminism) activists and some legal commentators.[2][3][4][5][6][7] Ntombizozuko Dyani-Mhango observed that the majority judgment's deference to the political branches was characteristic of Ngcobo's jurisprudence.[8]

## See also

- [Decriminalisation of sex work](/source/Decriminalization_of_sex_work)
- [Prostitution in South Africa](/source/Prostitution_in_South_Africa)

## References

1. [https://www.saflii.org/za/cases/ZACC/2002/22.html](https://www.saflii.org/za/cases/ZACC/2002/22.html) [34]

1. Spies, Amanda (2015). ["Better Late than Never: Lessons from S v Jordan in Strengthening Women's Participation in Litigation"](https://unisapressjournals.co.za/index.php/SAPL/article/view/3591). *Southern African Public Law*. **30** (2): 505–518. [doi:10.25159/2522-6800/3591](https://doi.org/10.25159/2522-6800/3591). [ISSN 2522-6800](https://www.worldcat.org/issn/2522-6800)

1. Krüger, Rósaan (2004). ["Sex Work from a Feminist Perspective: a Visit to the Jordan Case"](https://www.tandfonline.com/doi/full/10.1080/19962126.2004.11864812). *South African Journal on Human Rights*. **20** (1): 138–150. [doi:10.1080/19962126.2004.11864812](https://doi.org/10.1080/19962126.2004.11864812). [ISSN 0258-7203](https://www.worldcat.org/issn/0258-7203)

1. Bonthuys, Elsje (2006-12-01). ["Women's Sexuality in the South African Constitutional Court: Jordan v. S. 2002 (6) SA 642 (CC)"](https://doi.org/10.1007/s10691-006-9034-x). *Feminist Legal Studies*. **14** (3): 391–406. [doi:10.1007/s10691-006-9034-x](https://doi.org/10.1007/s10691-006-9034-x). [ISSN 1572-8455](https://www.worldcat.org/issn/1572-8455)

1. Fritz, Nicole (2004). ["Crossing Jordan: Constitutional Space for (un)Civil Sex ?"](https://www.tandfonline.com/doi/full/10.1080/19962126.2004.11864818). *South African Journal on Human Rights*. **20** (2): 230–248. [doi:10.1080/19962126.2004.11864818](https://doi.org/10.1080/19962126.2004.11864818). [ISSN 0258-7203](https://www.worldcat.org/issn/0258-7203)

1. Louw, Ronald (2003). ["The Constitutional Court Upholds the Criminalisation of Sex Work"](https://www.jstor.org/stable/4066397). *Agenda: Empowering Women for Gender Equity*. '***(57): 104–110. [ISSN 1013-0950](https://www.worldcat.org/issn/1013-0950). [JSTOR 4066397](https://www.jstor.org/stable/4066397)***

1. Kroeze, Irma J. (2003). "Sin and simulacra: some comments on the Jordan case: regspraak". *Journal of South African Law*. **3**. [S2CID 157146013](https://api.semanticscholar.org/CorpusID:157146013)

1. Dyani-Mhango, Ntombizozuko (2017). ["Reflecting on Former Chief Justice Ngcobo's Approach to Gender Equality: Revisiting the Jordan and Volks Judgments"](https://unisapressjournals.co.za/index.php/SAPL/article/view/3569). *Southern African Public Law*. **32** (1&2): 33 pages–33 pages. [doi:10.25159/2522-6800/3569](https://doi.org/10.25159/2522-6800/3569). [ISSN 2522-6800](https://www.worldcat.org/issn/2522-6800)

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Adapted from the Wikipedia article [S v Jordan](https://en.wikipedia.org/wiki/S_v_Jordan) by Wikipedia contributors ([contributor history](https://en.wikipedia.org/wiki/S_v_Jordan?action=history)). Available under [Creative Commons Attribution-ShareAlike 4.0 International](https://creativecommons.org/licenses/by-sa/4.0/). Changes may have been made.